In rе Edgerrin J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. EDGERRIN J., Defendant and Appellant. In re Jamar D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JAMAR D., Defendant and Appellant.
D076461 (Super. Ct. No. J239465) | D076462 (Super. Ct. No. J242137)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
November 20, 2020
Browder A. Willis, Judge.
CERTIFIED FOR PUBLICATION
APPEAL from judgments of the Superior Court of San Diego County, Browder A. Willis, Judge. Reversed and remanded with directions.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant Jamar D.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher P. Beesley, Robin Urbanski, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
The minors moved to suppress the evidence found in the car, claiming their initial detention was not supported by reasonable suspicion. Finding the encounter was consensual rather than a detention, the juvenile court denied the motions. Two of the minors pleaded guilty to a subset of the charges originally filed.
In this consolidated appeal,1 two of the minors—Edgerrin J. and Jamar D.—challenge the denial of their suppression motions. They argue the juvenile court erred in finding the encоunter consensual and claim the citizen‘s tip did not establish reasonable suspicion to detain them. We agree on both points. But there was conflicting evidence as to whether officers knew other facts that might furnish reasonable suspicion for the stop, or justify the detention and search pursuant to Edgerrin‘s active Fourth Amendment waiver. Because the rationale for its ruling made it unnecessary for the juvenile court to address these other issues, we reverse and remand for a new hearing to permit it to assess witness credibility and reach factual findings in the first instance.
FACTUAL AND PROCEDURAL BACKGROUND
1. Police contact and search
On March 13, 2019, SDPD officer Jerrad Schnautz was on patrol with his partner Willis Short in the Encanto neighborhood of southeast San Diego. At around 6:00 p.m., the two were parked on Madera Street along with fellow officers Kyle Williams and Samuel Euler. As the four officers dealt with an unrelated issue, a driver approaching southbound on Madera stopped her car
When they arrived, the officers found a legally parked black Mercedes with three young Black males inside. Williams and Euler parked directly behind the Mercedes, activating their vehicle‘s emergency lights; Schnautz and Short pulled up behind them but did not activate their lights. The four officers stepped out, walked over to the Mercedes, and positioned themselves at each door to prevent its three occupants from leaving. When the officers asked the vehicle occupants for their names and information, Edgerrin (sitting in the driver‘s seat) initially gave a false name. Schnautz went back to his patrol vehicle to perform records checks on all three occupants. Upon learning Edgerrin‘s identity and confirming that he was on probation subject to a condition waiving his Fourth Amendment rights (Fourth waiver), officers searched the Mercedes and recovered a loaded firearm underneath the driver‘s seat, a pair of sneakers connected to a robbery, and a clear white canister containing marijuana. The minors were arrested.
2. Charges and Motions to Suppress
The San Diego County District Attorney filed petitions under
The People opposed the suppression motions, arguing in their briefs that officers discovered Edgerrin‘s Fourth waiver during “a consent [sic] encounter with the minors.” Although Officer Williams activated his emergency lights in parking behind the Mercedes, the prosecution claimed this was done to “warn on-coming traffic of officers on foot,” and all officers proceeded to the vehicle “on foot in a slow and calm walk.” Alternatively, the People claimed that the officers had reasonable suspicion to detain the minors based on the citizen‘s tip. They argued that Encanto was a neighborhood where
3. Hearing and Ruling
The suppression motions were heard by Judge Willis. The People examined SDPD gang detective Amalia Sidhu and Officer Schnautz, and the court reviewed footage from Schnautz‘s bodyworn camera (BWC) depicting officers’ encounter with the minors and the subsequent search. The principal factual dispute between the parties centered on what Schnautz and the other officers knew about Edgerrin at the time they approached the Mercedes. The prosecution relied on testimony by Sidhu and Schnautz suggesting the officers knew by then that Edgerrin was a Lincoln Park gang member in rival gang territory, driving a black Mercedes, and on probation with a Fourth waiver. Defense counsel vigorously challenged this account, questioning why such information was omitted from police reports and conflicted with the officers’ behavior in the BWC footage.4
As noted, the prosecution identified two theories in its written opposition—either the encounter was consensual, or there was reasonable suspicion to detain based on the citizen tip. At the hearing, the prosecutor expanded on these theories. Relying on testimony that officers knew beforehand of Edgerrin‘s active Fourth waiver, he suggested it was a straightforward “Fourth waiver probation search.” Alternatively, the prosecutor claimed there was reasonable suspicion to detain the minors based on officers’ awareness that Edgerrin was a gang member in rival gang territory around a gang holiday—“this is reasonable suspicion, pure and simple, even without the Fourth waiver, knowing who he is, knowing when it was, knowing where he was.” “And then you layer into that, we have a civilian who lives in this neighborhood actively and affirmatively approaching gang unit officers . . . flagging them down, telling them that this is shady.”
Edgerrin‘s counsel responded that the prosecution was using the ends to justify the means. Despite Sidhu‘s testimony about what she told patrol officers, neither of her reports disclosed what transpired before the stop, leaving the court with a “credibility issue.” And the citizen tip that people were “acting shady” was too vague to create reasonable suspicion that criminal activity was afoot. Although officers could have stopped to ask a few questions, they instead “drove up in two separate cars, lights already on, up behind a Mercedes [whose] license plate they didn‘t check. They had no idea who was in that vehicle,” as the BWC video seemed to confirm.
After hearing from remaining defense counsel, the court denied the suppression motions, finding that no detention had occurred. As it explained, the officers had a right to be at that location and check on the vehicle after receiving the citizen tip. The court reasoned that at each step, the officers’ actions were lawful—their initial investigation was justified by the tip, their encounter with the minors remained consensual, and once they confirmed that Edgerrin was subject to a Fourth waiver, they could legally search the vehicle.5
4. Subsequent Proceedings
Jamar admitted to robbery (
DISCUSSION
Challenging the suppression ruling, defendants argue the juvenile court erred in concluding the officers were engaged in a consensual encounter when they activated their lights, parked behind the Mercedes, and surrounded the vehicle. They claim this conduct instead amounted to a detention, for which the vague citizen tip did not provide reasonable suspicion. The People respond that the court could reasonably find that no detention occurred. And even otherwise, they suggest the officers had reasonable suspicion to detain the minors based on facts they knew at the time.
As we explain, there is no question a detention occurred. We further agree with defendants that the bare citizen tip of “shady” behavior in this case does
1. Standard of review
The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures, including brief investigatory stops. (
2. The minors were detained.
“An officer may approach a person in a public place and ask if the person is willing to answer questions. If the person voluntarily answers, those responses, and the officer‘s observations, are admissible in a criminal prosecution.” (Brown, supra, 61 Cal.4th at p. 974.) “Such consensual encounters present no constitutional concerns and do not require justification.” (Ibid.) “However, ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,’ the officer effects a seizure of that person, which must be justified under the Fourth Amendment to the United States Constitution.” (Ibid.; quoting Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 (Terry).) When an individual
Here, we readily conclude the minors were detained. Two marked police vehicles pulled up behind the legally parked Mercedes. As Detective Sidhu explained, this practice is called “contact and cover” and is designed to let people know there is more than one police vehicle present. The first of the vehicles to park behind the Mercedes activated its lights. Though there is no bright-line rule that activating lights always constitutes a detention, the “Supreme Court has long recognized that activating sirens or flashing lights can amount to a show of authority.” (Brown, supra, 61 Cal.4th at pp. 978, 980.)
Even if a stop did not occur with the officers’ arrival on the scene, it plainly occurred immediately thereafter when four officers stepped out of their vehicles after parking and walked to each door of the sedan for the admitted purpose of preventing its occupants from leaving. The minors were directed to roll down their windows, hand over proof of identification, and provide their names, addresses, and birthdays. When Edgerrin asked if he could call his father, Officer Williams ordered him, “Stay off this phone. I don‘t want you to do any of that kind of stuff, okay?” Jamar spelled his name for officers and gave his date of birth, but when he could not provide proof of identification, Officer Short warned him, “don‘t lie to me” and stated the officers were “not gonna leavе here until we find out” his real name. Under these facts, no reasonable person in defendants’ position would feel free to leave. (Brendlin, supra, 551 U.S. at pp. 255, 257; see Brown, supra, 61 Cal.4th at pp. 977−980 [defendant was detained when deputy stopped behind his parked car and activated his lights].) Instead, a reasonable person in the minors’ position “would have perceived [the officers‘] actions as a show of authority, directed at [them] and requiring that [they] submit by remaining where [they] [were].” (Brown, at p. 978.)
The juvenile court found otherwise based on footage from Officer Schnautz‘s bodyworn camera. Having requested transmission of that exhibit (
Faced with this record, the People appropriately concede that the evidence supports “a reasonable conclusion that thеre was, in fact, a detention.” Indeed, that is the only reasonable conclusion.
3. Uncontested evidence does not furnish lawful justification for the stop.
Because the encounter was not consensual, the officers required legal justification to detain the minors. In their opposition brief below, the People maintained that the citizen tip, standing alone, furnished reasonable suspicion for a detention. At the hearing the prosecutor shifted gears, arguing in closing that the tip furnished reasonable suspicion in combination with officers’ prior knowledge that Edgerrin was a gang member present in rival gang territory around a gang holiday. Separate and apart from these theories, the People argued for the first time at the suppression hearing that the officers knew beforehand that Edgerrin had an active Fourth waiver, making it “a straight-up Fourth waiver probation search.”
Addressing these arguments in turn, we conclude the vague citizen tip of “shady” behavior did not, standing alone, furnish reasonable suspicion for a detention. As to whether there were additional facts known to the officers that could support the citizen tip—or whether officers knew of Edgerrin‘s active Fourth waiver at the time they initiated contact—the facts are heavily contested, and no credibility finding was made by the juvenile court. Accordingly, on the present record the detention and subsequent search cannot be justified on this potential alternative ground. It will be for the juvenile court on remand to make the necessary factual findings and determine whether the officers in fact had enough additional information to constitute reasonable suspicion.
a. Legal Principles
Although a brief investigatory detention need not be supported by probable cause, it must be based on reasonable suspicion that criminal activity is afoot—i.e., “specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (Souza, supra, 9 Cal.4th at pp. 230−231; see Navarette v. California (2014) 572 U.S. 393, 396 (Navarette); Terry, supra, 392 U.S. at p. 22.) The reasonable suspicion standard is objeсtive in nature, “based on the facts and circumstances known to the officer but without regard to the officer‘s subjective state of mind.” (People v. Flores (2019) 38 Cal.App.5th 617, 626.) Mere rumor or hunch do not suffice. (See Brown, supra, 61 Cal.4th at p. 981; Navarette, at p. 397; Terry, at p. 22; In re Tony C. (1978) 21 Cal.3d 888, 893.) “[W]here a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer‘s duties.” ’ ” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
Reasonable suspicion is, of course, unnecessary here if the officers knew that Edgerrin was inside the black Mercedes and subject to an active
b. The citizen tip, by itself, did not provide reasonable suspicion for a detention.
In its opposition papers and at the suppression hearing, the prosecution rеlied on the citizen tip to argue in whole or in part that there was reasonable suspicion to detain the minors. Defendants maintain that this tip, standing alone, did not suffice. We agree with defendants.
“The ‘reasonable suspicion’ necessary to justify a stop ‘is dependent upon both the content of information possessed by the police and its degree of reliability.’ ” (Navarette, supra, 572 U.S. at p. 397; Brown, supra, 61 Cal.4th at p. 981.) Where officers rely on a citizen‘s tip, that tip must be ” ‘reliable in its assertion of illegality, not just in its tendency to identify a determinate person.’ ” (People v. Dolly (2007) 40 Cal.4th 458, 471 (Dolly).) “A tip‘s reliability depends upon an assessment of ‘the totality of the circumstances in a given case.’ ” (Id. at p. 464.) “One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.” (Adams v. Williams (1972) 407 U.S. 143, 147Alabama v. White (1990) 496 U.S. 325, 330 (White).)
Case law offers useful guideposts on the reliаbility requirement for citizen tips. In White, supra, 496 U.S. 325, an anonymous tip that a woman would drive from a particular apartment building to a particular motel in a station wagon with a broken right taillight, transporting cocaine, was sufficiently reliable to create reasonable suspicion once officers corroborated the innocent details. (Id. at pp. 331‒332.) A 911 caller‘s tip that she had been run off the highway was likewise sufficiently reliable in Navarette where the caller identified the make and model of the vehicle, recited the license plate number, made a contemporaneous report, and used the 911 emergency system. (Navarette, supra, 572 U.S. at pp. 399−400.) Similarly, in Brown, officers had reasonable suspicion for a detention based on a 911 call reporting a violent fight. (Brown, supra, 61 Cal.4th at pp. 982‒983.) “[The] caller‘s
In contrast to these cases, there was no reasonable suspicion to detain and frisk a minor in Florida v. J.L. (2000) 529 U.S. 266 (J.L.), where police received an anonymous telephone tip claiming a young Black male in a plaid shirt standing at a bus stop was carrying a firearm. The tipster did not explain how he knew this information or suggest any particular familiarity with the suspect, and the tip itself included no predictions of future behavior that could be corroborated to assess his credibility. (Id. at pp. 271−272.) The court rejected the state‘s contention that the tip was reliable because “there really was a young [B]lack male wearing a plaid shirt at the bus stop” as the tipster described—reasonable suspicion required “that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” (Ibid.)
Turning to our record, Officer Schnautz testified at the suppression hearing that he and his three colleagues were parked on the northbound side of Madera Street when, around 6:05 p.m., a female driver approaching them southbound stopped and flagged them down. The driver told officers that she lived on a street nearby, where a parked black Mercedes was occupied by Black males who were “acting shady.” Although the tipster “didn‘t elaborate on what she meant” by “acting shady,” officers decided to make contact with occupants of the vehicle. The BWC footage supports this account; after receiving the tip, the officers immediately drove a few blоcks to the specified street and approached the Mercedes.6 As we explain, this report of “shady” behavior lacked the requisite indicia of reliability—particularly as to the assertion of illegality—to be used as the sole justification for the detention.
“[P]rivate citizens who report criminal activity generally have no bias or motive other than good citizenship, and therefore tend to be reliable.” (Brown, supra, 61 Cal.4th at p. 982.) Tips are even more reliable where “officers had the opportunity to see the tipsters, observe them face-to-face and evaluate their credibility.” (People v. Coulombe (2000) 86 Cal.App.4th 52, 58 (Coulombe).) The tipster in this case spoke to officers face-to-face and revealed her address, providing some means of tracking her down. (Brown, at p. 982.) Although not established by Schnautz‘s testimony, it seems plausible that she was speaking from personal knowledge as someone who had just witnessed something she believed was “shady” behaviоr. (Id. at p. 981; but see J.L., supra, 529 U.S. at pp. 271‒272 [anonymous tip was insufficiently reliable where the informant “neither explained how he knew about the gun nor supplied any basis for believing he had information about [the defendant]“].)
Even so, a reliability problem arises from the information the tipster conveyed. Although she contacted police in person and left identifying information, her tip provided only a vague and highly subjective characterization of the behavior she saw. What is “shady” to one person may be unremarkable to another. Standing alone, nothing the tipster said was “reliable in its assertion of illegality.” (J.L., supra, 529 U.S. at p. 272.) Although officers confirmed the presence of Black males in a black Mercedes parked on the specified street, this could not cure the tip‘s central defect—the car was legally parked, and officers did not observe any indicia of criminal activity when they arrived. On this record, the citizen‘s tip was insufficiently reliable as to аny illegal behavior to provide a basis for a detention. (Id. at pp. 271−272; see, e.g., Coulombe, supra, 86 Cal.App.4th at p. 57 [finding reasonable suspicion from contemporaneous in-person citizen reports that someone fitting defendant‘s description was carrying a firearm amongst a crowd of New Year‘s Eve revelers].)
In isolation, an allegation of “shady” behavior is far too vague to suggest criminal activity. “Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.’ ” (Navarette, supra, 572 U.S. at p. 401 [finding reasonable suspicion where conduct alleged by 911 caller suggested drunk driving].) Just as a Terry stop may not rest on “bare-boned tips” about guns or narcotics (J.L., supra, 529 U.S. at p. 273), a detention cannot be based solely on a citizen tip that someone is acting “shady.” Even Schnautz struggled to define what “acting shady” meant, testifying it could convey anything from a person casing cars or looking to commit burglary to being “in the area for any unknown reasons.” As Edgerrin‘s counsel remarked at the suppression hearing, “shady” can mean any number of things, and does not necessarily suggest a crime is occurring. It follows that a bare-bones tip of shady behavior conveys no more than a mere hunch of criminal activity, which does not suffice to justify a stop. (Brown, supra, 61 Cal.4th at p. 981; Navarette, supra, 572 U.S. at p. 397.)
c. Basing reasonable suspicion on other contextual evidence would require a credibility assessment the juvenile court did not make.
Contending there were additional factors at play, the People assert that Schnautz made the stop based on his knowledge that Edgerrin was a gang member in rival territory combined with the citizen tip. True enough, Schnautz testified on direct that he was helping Detective Sidhu with her surveillance on Edgerrin earlier that day and that she had informed him that Edgerrin was “a Lincoln Park gang member” present “in a rival set neighborhood.” Schnautz further claimed to know beforehand that Edgerrin drove a black Mercedes and was on probation with an active Fourth waiver. Upon receiving the citizen tip, Schnautz claimed he suspected that Edgerrin was inside and “could bе looking to commit some kind of act of violence against any rival set gang member.”
Sidhu‘s testimony supported this version of events. She claimed on direct to know prior to the day of the stop that Edgerrin was on probation with a Fourth waiver. In surveilling Edgerrin that afternoon, she said she saw him in a black Mercedes bearing the same license plate as the car later stopped. Sidhu testified that she relayed to Schnautz and other officers that Edgerrin was in a black Mercedes with an active Fourth waiver. She was unequivocal that officers knew Edgerrin‘s probation status before making the stop.
While these contextual facts would surely affect our “totality of circumstances” analysis for reasonable suspicion (or justify the search outright as a straightforward probation search), we cannot rely on them to affirm for the simple reason that they were heavily disputed, with no credibility finding made by the juvenile court. Defense counsel vigorously challenged what officers knew in making the stop. As we describe below, the court at times cut off this inquiry, and it did not ultimately make a credibility finding as to facts that were unnecessary to its (ultimately incorrect) decision that no detention occurred. “Thus, we do not have before us any express or implied findings of
For example, defense counsel noted while cross-examining Detective Sidhu that her police reports on March 14 and 26 did not mention surveilling Edgerrin that afternoon or informing other officers about his Fourth waiver or the Mercedes. When Sidhu replied that she conveyed this information verbally to Schnautz and other officers over the radio, counsel for Edgerrin questioned why there was no such reference in the computer-aided dispatch (CAD) generated in this case. The court stopped this inquiry, finding it “far enough afield.” Edgerrin‘s counsel eventually established that police reports are written in chronological order, and Sidhu‘s reports did not mention seeing Edgerrin in a black Mercedes earlier that day nor reference any records check performed on Edgerrin prior to the stop. The first mention of a records check in Sidhu‘s reports instead followed her description of the stop. Once more, the court sustained the prosecutor‘s relevancy objection, halting further inquiry.
Defense counsel likewise identified several discrepancies in Schnautz‘s account. Schnautz testified he had reviewed Officer Williams‘s arrest report and found it “accurate,” but conceded it contained nothing “related to Edgerrin [J.] driving around a black Mercedes” prior to his detention. Schnautz likewise did not recall being informed at any point about a license plate number for a particular black Mercedes. Edgerrin‘s counsel then рrobed Schnautz‘s “initial . . . reasons for approaching the vehicle.” As Schnautz conceded, the tipster had simply conveyed that “there [were] some guys in a black Mercedes that seemed shady.” This prompted him and the three officers to drive directly to the location of the Mercedes, park, and step out of their vehicles to contact its occupants. Schnautz did not run the license plate before stepping out. He agreed he had no prior contact with Edgerrin before making the stop.
Next up, Jamar‘s attorney tried to pinpoint when Schnautz and Sidhu had been in contact with each other. She asked Schnautz, “[Sidhu] didn‘t relay any information to you on March 13 about Edgerrin [J.]; correct?” Schnautz did not respond, invoking privilege under
question was read back, and Schnautz answered “Yes.”9 Trying to clarify, counsel asked, “[a]t what point in time did you receive this information [from Sidhu]?“—but the court ended the inquiry, finding it irrelevant to whether the encounter was consensual. When counsel asked whether either of the police reports Schnautz reviewed (authored by Williams and Short) contained any information related to prior surveillance on Edgerrin, the court sustained the prosecutor‘s objection, stating the topic had been covered by Edgerrin‘s counsel. Schnautz did not recall anything in the police reports relating to officers’ prior knowledge of Edgerrin‘s probation status, Fourth waiver, or gang affiliation.
During closing arguments, Edgerrin‘s counsel stated that there remained a “credibility issue” as to what transpired earlier that day, as officers’ alleged surveillance on Edgerrin was not reflected in any of the police reports. He understandably relied on several apparent inconsistencies between the police testimony and the BWC footage to suggest that officers “had no idea who was in that vehicle” whеn they surrounded it. For instance,
Schnautz stumbled over how to spell or pronounce Edgerrin‘s name and did not appear to know who he was. Not until he later ran a records check did Schnautz seem to realize that Edgerrin was on probation. Jamar‘s counsel joined these arguments, further questioning the prosecutor‘s claim that this was a straightforward probation search: “If it was so clear and simpl[e], then there would have been evidence of knowledge of this Fourth waiver prior to this hearing, prior to Detective Sidhu sitting there on the stand.” Instead, prior communication about the Fourth waiver was not mentioned in reports prepared by Williams, Short, or Sidhu. Counsel maintained that there wasn‘t “any credible information that there was knowledge that Edgerrin [J.] was on probation with a Fourth waiver prior to the stop.”
In summary, counsel for both Edgerrin and Jamar argued that Schnautz and Sidhu had made up a justification after the fact—nothing in the police reports
“A detention may not be justified after the fact on a basis not relied on by the officer.” (People v. Bower (1979) 24 Cal.3d 638, 647; see Jaime P., supra, 40 Cal.4th at p. 133 [otherwise unlawful search of minor subject to probation search condition could not be justified by post-search discovery of that condition].) Absent a factual finding as to what officers knew about Edgerrin at the time they first approached the Mercedes, we cannot determine whether additional contextual evidence either provides reasonable suspicion for a detention, or justifies the search comрletely based on Edgerrin‘s Fourth waiver.10
d. Remand is necessary.
Because justification for the stop turns on credibility assessments that have yet to be made, remand is necessary. Following a hearing, the juvenile court must make necessary factual findings as to what the officers knew when they stopped the minors. (See People v. Bowers (2004) 117 Cal.App.4th 1261, 1273 (Bowers) [remanding for the trial court to consider additional theories justifying the search]; People v. LeBlanc (1997) 60 Cal.App.4th 157, 168 [same].)11
If the court determines that the officers knew Edgerrin had an active Fourth waiver prior to the detention, that ends the inquiry. (Jaime P., supra, 40 Cal.4th at p. 134.) Likewise, if officers knew other contextual facts—such as
DISPOSITION
The judgments in People v. Edgerrin J. (case No. J239465) and People v. Jamar D. (case No. J242137) are reversed, and the matters are remanded to the juvenile court with directions to vacate its order denying the motions to suppress and conduct a renewed suppression hearing, consistent with this opinion, to resolve credibility conflicts as to what the officers knew at the time they detained defendants. If the court again denies the motions to suppress, it shall reinstate the judgments; but if it grants the motions, it shall afford defendants an opportunity to withdraw their guilty pleas. (See Bowers, supra, 117 Cal.App.4th at p. 1274.)
DATO, J.
WE CONCUR:
HALLER, Acting P. J.
GUERRERO, J.
Dato, J., Concurring.
I take the somewhat unusual step of concurring in my own majority opinion to add a few personal observations.
Nearly a century ago Justice Benjamin Cardozo wrote: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” (Cardozo, The Nature of the Judicial Process (1921) p. 168.) Nor should they. As our broader cultural views on racial injustice evolve, courts and judges are compelled to acknowledge and confront the problem. (See, e.g., B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 31 (conc. opn. of Liu, J.) [citing “the troubling racial dynamics that have resulted in state-sanctioned violence, including lethal violence, against Black people throughout our history to this very day“]; Utah v. Strieff (2016) 136 S.Ct. 2056, 2070−2071 (dis. opn. of Sotomayor, J.) [“it is no secret that people of color are disproportionate victims of this type of scrutiny” in suspicionless stops]; State v. Saintcalle (Wash. 2013) 309 P.3d 326, 341 (Saintcalle) [“Racial inequalities permeate our criminal justice system and present important moral issues we all must grapple with.“]; Glossip v. Gross (2015) 576 U.S. 863, 921 (dis. opn. of Breyer, J.) [contemplating how conscious and unconscious bias affect jury determinations of relative culpability in capital cases “despite their legal irrelevance“].)
Although he ultimately denied the suppression motion, Judge Willis presciently аnticipated issues that would soon stir our national consciousness when he remarked, “Now, we could go into the social justice analysis of young [B]lack men in [B]lack communities being over-policed, directly or indirectly, and discuss all manner of circumstances.” He declined to do so, however, believing “the law hasn‘t reached that point as of yet.” Speaking in May 2019, he could not have known what a difference a year would make.1
We have resolved this appeal without delving into complex issues of race and policing, but I submit that as judges we must remain mindful of the broader context in which this case arose. Three Black male teenagers sitting in a legally parked vehicle were detained by four police officers. The detention may have been based on nothing more than a tip from a woman—who appears to be White—that the teens were “acting shady.” In situations like this, law enforcemеnt officers must be sensitive to how implicit biases might influence what passersby perceive as a threat, just as judges must appreciate how officers on the receiving end of a vague, subjective tip might interpret the information they obtain.2 (See, e.g., Saintcalle, supra, 309 P.3d at p. 335 [“we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them“].) Similarly, racial dynamics can affect how officers’ actions are perceived by someone in defendants’ shoes. (See, e.g., Commonwealth v. Warren (Mass. 2016) 58 N.E.3d 333, 342 [Black males in Boston who flee police “might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity“];
Jamison v. McClendon (S.D. Miss., Aug. 4, 2020, No. 3:16-CV-595-CWR-LRA) __ F.Supp.3d __ [2020 WL 4497723, at *22] [decades after the 1960‘s, “Black
Ultimately, there аre myriad ways in which racial perceptions and biases might surface in a given criminal case, as in everyday life. And while the police officers here never inquired further to find out what exactly the tipster saw that concerned her, our opinion appropriately emphasizes the perils of relying solely on this type of report as a basis to detain. To that end, the objective standard of reasonable suspicion, which has always required more than a mere hunch to justify a detention, remains a vital safeguard for protecting our important Fourth Amendment rights.
DATO, J.